WHA submitted comments to the five federal agencies in charge of implementing the No Surprises Act, raising concerns about an interim final rule that runs contrary to congressional intent by favoring insurance companies with a benchmark payment rate over other factors when it comes to resolving disputes. Comments were submitted earlier this week, just before the American Hospital Association (AHA) and the American Medical Association (AMA) announced a lawsuit challenging the provision.
Over the last three years as Congress deliberated how to address instances when patients were surprised by a health care bill due to an out-of-network provider, hospitals strongly supported the idea that patients should not be caught in the middle, but that to resolve any payment disputes the parties should use an independent arbiter to work out differences.
Although Congress had considered establishing a benchmark rate, instead the No Surprises Act outlined several criteria an independent arbiter should use to determine the appropriate payment rate. These factors include not just what the Centers for Medicare & Medicaid Services (CMS) calls the “qualifying payment amount” (QPA), which is the median in-network rate, but also the level of training, experience, quality and outcomes of the provider; the market share held by the provider and/or the plan; patient acuity; and teaching status, case mix, and scope of services of the provider.
But in its rulemaking process, the federal government determined that the single most important factor to be used is the median in-network rate. Prior to the enactment of the No Surprises Act, the Congressional Budget Office had projected the fallout of such a move was that the median in-network rates would become a ceiling for negotiations, and eventually function as government-set benchmark rates for providers. This would reward health insurance companies at the expense of hospitals and other providers, which would be forced to accept lower rates or be threatened with being moved out-of-network. The domino effect could lead to fewer in-network providers for patients.
The AHA and AMA lawsuit challenges this provision, saying that it would reduce access to care, reduce provider networks and discourage meaningful contract negotiations.
In its comments, WHA urged CMS to heed the advice of the 152 congressmen and women who signed onto a letter asking the agencies to implement the Act in a way that improves rather than exacerbates concerns over network adequacy, and revise the interim final rule to avoid disproportionately weighting the median in-network rate.
Under the law, patients cannot be charged more than the in-network rate and providers can't bill patients for out-of-network emergency services or for nonemergency services performed by an out-of-network physician at an in-network facility. The U.S. Department of Health and Human Services issued rules implementing that part of the law earlier this summer with a Jan. 1, 2022 start date.
For more information about the No Surprises Act, CMS has recently released additional information and resources, including templates of certain required forms, on its webpage